MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  6 February 2001
	DOCKET NUMBER:  AR2000045174

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Thomas Lanyi		Member	
	Mr. Walter T. Morrison		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his under other than honorable conditions discharge be upgraded to a general discharge.  He states, in effect, that he was discharged for allegations of housebreaking which he did not commit.  In support of his application he submits a copy of his DD Form 214 and several character references.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show he enlisted on 27 August 1976 as a tactical wire operations specialist.  He was promoted to pay grade E-3 effective 3 July 1977 and to pay grade E-4 on an unknown date.

The applicant departed AWOL on 4 January 1978 and remained AWOL until 6 January 1978 (2 days).  He was punished under Article 15, UCMJ, resulting in 14 days restriction and extra duty, reduction to pay grade E-3 (suspended) and a forfeiture of pay.

The applicant departed AWOL on 5 July 1978 from Fort Ord, California and remained AWOL until he was apprehended by civil authorities and returned to military control on 19 October 1978 at Fort Knox, Kentucky.

Charges were preferred against the applicant on 27 October 1978 for being AWOL from 5 July 1978 to 19 October 1978 (106 days).

On 30 October 1978, he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial, under the provisions of AR 635-200, chapter 10.  In doing so, he admitted guilt to the offense charged and acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Veterans Administration (VA) if a discharge under other than honorable conditions were issued.  He also elected to submit a statement in his own behalf in which he stated the he went AWOL because of his mother’s health and family problems. 

On 21 November 1978, the separation authority disapproved the applicant’s request for discharge.

The applicant departed AWOL on 12 January 1979 and remained AWOL until
19 January 1979 (7 days).

On 22 January 1979, he was punished under Article 15, UCMJ, for being AWOL from 5 July 1978 to 19 October 1978 (106 days).  His punishment consisted of a reduction to the pay grade of E-3, a forfeiture of pay, and 20 days restriction.

On 6 February 1979, the applicant was reassigned to Fort Lewis, Washington.

Charges were preferred against the applicant on 13 April 1979 for two specifications of housebreaking, for six specifications of larceny, for harassment, and for being AWOL from 5 July to 19 October 1978 (106 days) and from 
12 to 19 January 1979 (7 days).

On 18 April 1979, he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial, under the provisions of AR 635-200, chapter 10.  In doing so, he admitted guilt to the offenses charged and acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Veterans Administration (VA) if a discharge under other than honorable conditions were issued.  He also elected to submit a statement in his own behalf in which he stated the he went AWOL because of his mother’s health and family problems. 

On 27 April 1979, the separation authority approved the applicant’s request for discharge and directed that he be furnished an Under Other Than Honorable Conditions Discharge Certificate.  The applicant was discharged on 25 May 1979.  He had a total of 2 years, 5 months, and 4 days of creditable service and 115 days of lost time due to AWOL.

The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 30 June 1983.  The ADRB, in a formal hearing with the applicant and counsel present, determined that his discharge was proper and equitable and denied his request on 13 July 1983.

The applicant provides two recent letters of character reference which discuss his dependability as an employee and his dedication to his faith and family.

Army Regulation 635-200 sets forth the basic authority for separation of enlisted
personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges
have been preferred submit a request for discharge for the good of the service
in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate. 

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 13 July 1983, the date of the ADRB decision.  The time for the applicant to file a request for correction of any error or injustice expired on 13 July 1986.

The application is dated 24 July 2000 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__ro____  ___tl___  __wm____  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR2000045174	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010206	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19790525	
DISCHARGE AUTHORITY	AR 635-200  C, 10	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189		
2.		
3.		
4.		
5.		
6.